K. J. SENGUPTA, J. ( 1 ) IN this representative action the petitioner No. 1 being the Association of the consumers of low tension line and its members have challenged in substance imposition of fixed charge at the rate of Rs. 10/- Per Horse Power Per month for all low tension industrial consumers by Notification dated 24th December 1998. The fact of the case in this action is as follows:- ( 2 ) BY a notice dated 24th December 1998 published in the 'statesman' the respondent Board most arbitrarily and illegally has imposed upon the petitioners and all industrial consumers with low tension line new electricity charges at the rate of Rs. 10/- per Horse Power per month as "fixed Charge" along with the charges for units consumed as per tariff, after abolishing the Annual Minimum charge. So, the petitioners have been seriously affected with this high economic burden. ( 3 ) MR. Kashikanta Maitra, learned senior advocate in support of the petitioners contends that under section 22 of the Indian Electricity Act 1910 the licensee is entitled to claim Annual Minimum Charge for reasonable return on the capital expenditure for supply of energy and section 23 (3) provides the condition for supply for energy. ( 4 ) HE also contends Schedule VI of the Electricity (Supply) Act 1948 provides that with the approval of the Government the Board can levy only minimum charge for supply of electricity of the persons other than the licensees. He contends there is no provision for imposition of impugned fixed charge under the Act. Therefore, imposition of fixed charge is ultra vires of the Indian Electricity Act 1910 and Electricity (Supply) Act 1948. ( 5 ) HE contends further that fixed charge has not relation to quantum of electricity consumed by the petitioners and as such it is not sustainable as the same will be arbitrary and whimsical action. ( 6 ) HE contends that there is a fundamental distinction between" tax" and "fee". The aforesaid imposition of fixed charge has been made as tax in disguise which is not permissible under the law. As such the aforesaid Notification as well as the decision for imposition of fixed charge is liable to be set aside and quashed. ( 7 ) MR. The aforesaid imposition of fixed charge has been made as tax in disguise which is not permissible under the law. As such the aforesaid Notification as well as the decision for imposition of fixed charge is liable to be set aside and quashed. ( 7 ) MR. Sumit Panja, learned Advocate appearing for the Board submits that the Board after considering all aspects and having found that it has been suffering enormous loss and no reasonable return is ensured in the capital investment has been compelled to fix the aforesaid minimum charge in order to increase the revenue. The language "fixed charge" is not substantially different from the "annual minimum charge". Under section 79 of the Electricity (Supply) Act 1948 read with section 49 thereof the Board has power to frame regulation relating to supply of electricity to the persons other than licensees. Under this regulation by virtue of clause 7 (b) tariff for supply of energy can be varied. ( 8 ) HE contends that under section 23 (3) of the Indian Electricity Act 1910 the Board has been given power with the approval of the Government to fix any rate or tariff for supply of electric energy. In this case the Board after reviewing the tariff position has decided to revise the tariff in its Board meeting. After considering all aspects the Board has decided to impose the fixed charge at the aforesaid rate in case of low tension industrial consumers in order to augment revenue to make good the loss. This has been done considering escalation of price of raw materials and costs of generation. The Government has duly accorded approval to the said revision of rate. ( 9 ) HAVING heard the respective contentions of the learned Advocate the point which has fallen for consideration in this case is whether the Board has power and/or jurisdiction to increase and/or revise the tariff for supply of energy to the consumer or not. Mr. Panja is right is saying that in this case under section 23 (3) of the Indian Electricity Act 1910 the Board has power to fix rate and/or tariff for supply of electric energy after approval of the State Government. Therefore, section 23 of the Indian Electricity Act 1910 is reproduced hereunder in order to get clear idea of my aforesaid findings. "23. Therefore, section 23 of the Indian Electricity Act 1910 is reproduced hereunder in order to get clear idea of my aforesaid findings. "23. Charges for energy to be made without undue preference.- (1) A licensee shall not, in making any agreement for the supply of energy, show undue preference to any person. (2) No consumer shall, except with the consent in writing of the licensee, use energy supplied to him under one method of charging in a manner for which a higher method of charging is in force. (3) In the absence of an agreement to the contrary, a licensee may charge for energy supplied by him to any consumer- (a) by the actual amount of energy so supplied, or (b) by the electrical quantity contained in the supply, or (c) by such other method as may be approved by the State Government. (4)Any charges made by a licensee under clause (c) of sub-section (3) may be based upon, and vary in accordance with, any one or more of the following considerations, namely - (a) the consumer's load factor, or (b) the power factor of his load, or (c) his total consumption of energy during any stated period, or (d) the hours at which the supply of energy is required. " ( 10 ) BESIDE that the Board has also been empowered to frame regulation for supply of electricity to the consumer other than licensees under section 79 of the Electricity (Supply) Act 1948. section 49 of the Electricity (Supply) Act 1948 authorizes the Board to fix uniform tariffs. Therefore, section 49 is reproduced hereunder for better understanding. "49. Provision for the sale of electricity by the Board to persons other than licensees.- (1) Subject to the provisions of this Act and of regulations, if any made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purpose of such supply frame uniform tariffs. (2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely:- (a) the nature of the supply and the purpose for which it is required; (b) the co-ordinate development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee; (c) the simplification and standardization of methods and rates of charges for such supplies; (d) the extension and cheapening of supplies of electricity to sparsely developed areas. (3)Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors. (4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any persons. " ( 11 ) IT appears that the Board on or about 3rd August 1965 by a resolution has framed regulation. viz. , the West Bengal State Electricity Board ( General Tariff) Regulation 1956. This regulation undoubtedly has got statutory force. I find therefrom under Clause 7 (a) that the Board can fix tariff at fixed charge. Beside, I also find in the agreement (Specimen of which is annexed to the petition) by virtue of clause 7 (b) alteration of any rate or tariff done by the Board is binding upon consumer. The test of clause 7 (b) is quoted hereunder :"7 (B ). If the board by a notification makes any alteration in the aforesaid rates for energy, tariff and its associated stipulation such altered rates, tariff and its associated stipulation shall be treated as if the same were part of this Agreement in supersession of the charges which were in vogue so long. " ( 12 ) THEREFORE, I am unable to accept the contention of Mr. Mitra that in this case Board has no power to fix different rate or tariff for supply of electric energy for the low tension consumers. " ( 12 ) THEREFORE, I am unable to accept the contention of Mr. Mitra that in this case Board has no power to fix different rate or tariff for supply of electric energy for the low tension consumers. On conjoint reading of sections 49 and 79 of the Electricity (Supply) Act 1948 and the said Regulation which are unchallenged here I have no hesitation to hold that the Board has power to change, alter or revise tariff. Because of the agreement as above to the contrary the Board need not have to consider the factors as mentioned in sub-sections (3) and (4) of section 23 of the Indian Electricity Act 1910 as quoted herein above. To make it clear ordinarily the licence (in this case the Board) is to fix charges for payment of electric energy on the basis of actual amount of energy so supplied by the electrical quantity contained in the supply and by such other method as may be approved by the State Government. In this case there is an agreement to the contrary whatever charges and rates and tariffs are altered by the Board shall be binding upon the consumer. But such fixation may not be arbitrary and a balance has to be struck keeping in view the interest of both the contracting parties. ( 13 ) IT appears that in this case previously there was a provision for payment of annual minimum charges in case of those consumers who fail to consume the minimum load as per the agreement. However, the other consumers who consumed guaranteed load as per the agreement had to pay charges for consumption of electric energy as per the reading of their respective meters. In my view, the previous arrangement in terms of the agreement was some extent discriminatory in the sense that the user of the electric energy used to get unjustified benefit in contrast with the consumer who fails to consume the guaranteed load. Now, I find in place of annual minimum charges, fixed charges have been provided irrespective of the fact that whether guaranteed load is consumed or not. This has been rationalized by spreading over the revenue expenditure to all the consumers. Therefore, I do not find any discrimination or arbitrary or illegality in this action. ( 14 ) NOW, question remains that this decision has been taken in accordance with law or not. This has been rationalized by spreading over the revenue expenditure to all the consumers. Therefore, I do not find any discrimination or arbitrary or illegality in this action. ( 14 ) NOW, question remains that this decision has been taken in accordance with law or not. The Board has adopted resolution lawfully and also approval of the Government has been accorded lawfully. The copies of the resolution and the document containing approval of the Government have been annexed to the petition. While adopting resolution, various factors have been noted and it is an absolutely administrative policy decision, the Court cannot enter this arena, particularly, when this has been done in accordance with the terms of the agreement which has been entered into under the provision of law. The said decision has been duly published in the newspaper admittedly. Hence, I do not find any illegality or invalidity of the aforesaid resolution. Thus, the writ petition is dismissed. There will be no order as to costs. Petition dismissed